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Dunn v. Miller

United States District Court, N.D. Texas, Dallas Division

April 27, 2018




         By Special Order No. 3-251, this pro se removed case has been automatically referred for judicial screening. Before the Court are the Motion for Preliminary Relief Regarding First Amendment Violations (doc. 21), and Motion to Correct Plain Errors (doc. 24), both filed on April 23, 2018. Based on the relevant filings and applicable law, the motions should be DENIED, and the case should be REMANDED sua sponte for lack of jurisdiction.

         I. BACKGROUND

         On February 13, 2013, Virginia Dunn (Plaintiff) filed a petition for divorce from Bradley Miller (Defendant) in the 330th District Court of Dallas County, Texas, and an agreed judgment was entered on April 2, 2014. (doc. 3 at 36, 43.)[1] Plaintiff subsequently re-opened the suit with a motion to modify the child custody arrangement. (Id. at 43.) On November 17, 2016, Defendant removed the action to the Dallas Division of the Northern District of Texas, alleging violations of various federal statutes and the United States Constitution by the state court judge. Dunn v. Miller, No. 3:16-CV-3213-L, 2016 WL 9651747, at *1 (N.D. Tex. Nov. 18, 2016). The case was sua sponte remanded to the state family court for lack of jurisdiction, and the Fifth Circuit Court of Appeals affirmed the decision on August 17, 2017. Dunn v. Miller, 695 Fed.Appx. 799, 800 (5th Cir. 2017), cert. denied, 138 S.Ct. 929 (2018).

         On September 13, 2017, Plaintiff filed a motion to enforce child support in the state court, alleging that Defendant refused to pay court-ordered child support payments. (doc. 3 at 52.) Although the state court's docket sheet shows that Defendant was served with citation on December 14, 2017, he alleges that he did not receive notice and failed to attend the hearing on the motion to enforce as a result. (Id. at 5, 53.) An arrest warrant was issued based on his failure to appear, and he was arrested on February 15, 2018, and released on bond the following day. (Id. at 5.) On March 8, 2018, Plaintiff filed a motion to suspend Defendant's visitation rights, and Defendant filed a motion to recuse the state court judge for bias. (Id. at 5-6, 55.) The motion to recuse was denied on March 27, 2018; the motion to suspend visitation rights remained pending. (Id. at 7, 55-56.)

         On April 17, 2018, Defendant again removed the action to federal district court. (Id. at 4.) He seeks to have certain injunctions issued in the state court vacated as unconstitutional, and he also seeks relief from the requirement that he provide a copy of all of the state court pleadings with his notice of removal. (docs. 21, 24.)


         Defendant removed this action based on federal question jurisdiction, and as a “civil rights removal” under 28 U.S.C. § 1443.[2] (doc. 3 at 1; doc. 12.)

         “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). “[A]ny doubt about the propriety of removal must be resolved in favor of remand.” Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007). Courts have “a continuing obligation to examine the basis for their jurisdiction.” See MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). They may sua sponte raise the jurisdictional issue at any time. Id.; EEOC v. Agro Distrib., LLC, 555 F.3d 462, 467 (5th Cir. 2009) (even without an objection to subject matter jurisdiction, a court must consider sua sponte whether jurisdiction is proper).

         A. Federal Question Jurisdiction

         Defendant contends that federal question jurisdiction exists because the state court has violated his constitutional rights as well as several federal statutes. (doc. 3 at 1.)

         Federal question jurisdiction exists only when a federal question is presented on the face of the plaintiff's well-pleaded complaint. Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal question is presented when “a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Singh v. Duan Morris LLP, 538 F.3d 334, 337-38 (5th Cir. 2008). To determine whether resolution of a substantial question of federal law is necessary, courts must determine whether “(1) resolving a federal issue is necessary to resolution of the state-law claim; (2) the federal issue is actually disputed; (3) the federal issue is substantial; and (4) federal jurisdiction will not disturb the balance of federal and state judicial responsibilities.” Id. at 338. “The removing party bears the burden of showing that federal question jurisdiction exists and that removal was proper.” Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

         1. Federal Defense

         The notice of removal alleges that federal question jurisdiction exists because this case involves “various willful, systemic deprivations of fundamental rights guaranteed by the Federal Constitution, and/or by federal law, and which deprivations are civil violations of 42 U.S.C. § 1983, and that are also criminal violations of 18 U.S.C. §§ 241 and 242.” (doc. 3 at 3, 10.) It further alleges that the state ...

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